Sentiments command no place in judicial deliberations – SC

This is an appeal by the appellant against the interlocutory decision of the Court of Appeal (the court below) Abuja Division delivered on the 27th April 2012, wherein the court affirmed the decision of the trial Federal High Court Abuja (the trial Court) and dismissed the appellant’s appeal in which he sought to set aside […]

This is an appeal by the appellant against the interlocutory decision of the Court of Appeal (the court below) Abuja Division delivered on the 27th April 2012, wherein the court affirmed the decision of the trial Federal High Court Abuja (the trial Court) and dismissed the appellant’s appeal in which he sought to set aside the decision of the said Federal High Court delivered on 8th May, 2009.
The background facts are simple and straight-forward: Sometime in 2005, the Economic and Financial Crimes Commission (EFCC) received several petitions from some well-placed concerned indigenes of Abia State of Nigeria against the appellant and some other persons. The said petitions bordered on abuse of office, corruption and money laundering. Upon receipt of these petitions, a team of investigation was constituted by the EFCC to discreetly investigate the petitions. Investigation revealed that the appellant who was the Governor of Abia State between May, 1999 and May 2007, incorporated some limited liability companies, one of which is SLOK NIGERIA (the 3rd respondent herein), of which he was a shareholder.
It was the 1st respondent’s case that the Abia State Government funds running into some billions of Naira in various banks were allegedly fraudulently withdrawn and illegally converted into drafts in favour of the personal use of the appellant in his SLOK GROUP of Companies. Other allegations leveled against the appellant were that he awarded the state government’s contracts to such companies as ZEROCK CONSTRUCTION Ltd, HITEC CONSTRUCTION LTD, HAPEL NIGERIA LTD and UDEX NIGERIA LTD in which he had interest.
It was alleged that the contractors to whom contracts were awarded by the appellant as the governor, also obtained several bank drafts which were lodged into the 3rd respondent’s account as gratifications. In view of these allegations the 1st respondent filed a criminal charge against the 2nd and 3rd respondents herein and some other officials of the Abia State Government at the Federal High Court Lagos.
The name of the appellant featured in the said charge but because he was still under official immunity, as such could not be prosecuted. The said charge was later withdrawn. Subsequently, when the appellant as well as the 2nd and 3rd respondents were arraigned at the Federal High Court Abuja, he approached the Federal High Court, Lagos and the Federal High Court, Umuahia, seeking a sort of reprieve for an order to restrain the EFCC from arresting, detaining or prosecuting him.
It would appear when he failed in his bid to secure the said restraining order in these courts, the appellant went to the Abia State High Court, Umuahia where he filed an application for enforcement of his fundamental rights. On the 31st May, 2007, the court made an exparte order restraining the EFCC from arresting and/order detaining him, in the following term:
“That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determination of the motion on Notice.”
The above order was relied upon by the appellant before the trial Federal High Court and the Court of Appeal to argue that he can no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the court below to quash the charge against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
The 1st respondent herein reacted by opposing the application to quash the charge before the Federal trial High Court. It filed a counter-affidavit with two exhibits. In his considered ruling the learned trial judge dismissed the appellant’s motion to quash the charges preferred against him on 8th May, 2009. The Appellant’s appeal to the court below was further dismissed.
 Dissatisfied with the judgment of the court below, the appellant further appealed to this court. Issues: 
(i)              Whether the court below was right when it held in sum that a charge preferred against an accused person contrary to the terms of an order made by a court of competent jurisdiction is not thereby violated.
(ii)           Whether the court below was right in holding that the proof of evidence discloses a prima facie case.
The real fulcrum of the appellant’s argument is that the court below erred when it held that a charge preferred against the appellant contrary to the terms of an order made by a court of competent jurisdiction is not thereby vitiated. May it be observed that at the court below similar argument was put up by the Appellant when he argued that the trial High Court erred not to have quashed the charge or information No FHC/ABJ/ CR/56/2007, which was filed by EFCC, the 1st respondent herein, in brazen disregard of the exparte order of Abia State High Court on 31st May, 2007 in the suit No.Hu/177/2007.
The same argument has been adduced before us under the appellant’s issue 1. The appellant’s grouse is the consequences of disobedience of courts order by the courts, or persons in authority, in the face of lis pendes (a pending suit).
 The principle of law upon which the appellant has relied, is stated in DANIEL VS. FERGUSON (1891) 2 CH.27 referred to, and applied in GOVERNOR OF LAGOS STATE V. CHIEF OJUKWU (1986) 1NWLR, (Pt.18) 621 and EZEGBU V. FIRST AFRICAN TRUST BANK LTD (F.A.T.B) (1992) 1 NWLR (Pt.220) 197.
The principle is that whatever a litigant had done something during lis pendes calculated to over reach his adversary, would be undone or obviated by the court in its disciplinary jurisdiction. At the trial Federal High Court, the 1st respondent herein had persuaded the court to adopt and apply the authorities of OLUTOLA V. UNIVERSITY OF ILORIN (2004) 18 NWLR. (Pt.905) 452 and UWAZURUIKE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (Pt.1096) 444 at 458-59 which held that courts of similar or concurrent jurisdiction are not bound to follow the decision of each other.
The trial court agreed and held it was not bound by the exparte order of Abia State High Court of 31st May, 2007 in HU/177/2007. This was what prompted the appeal to the court below. That court was on a firm ground when it agreed with the Federal High Court that the exparte order of the Abia State High Court would not avail the appellant to argue that the order was binding on the Federal High Court so much as to render its warrant for the arrest of the Appellant and
its proceedings in FHC/ABJ/CR/56/2007 a nullity.
I also agree with the submission of learned counsel for the respondent that an order granted by the Federal High Court, Owerri was an exparte order for the applicant that is the 1st appellant in this court, to enforce his fundamental human rights. It was not order directed to the proceedings before the same court sitting in Abuja.
Consequently is my view that the trial judge was right not to have given credence to the Federal High Court, Owerri as the order given by that court was not binding on her.”
This point that an order of injunction must be identified clear and cogent was emphasized in ONAGORUWA V. ADENIJI (1993) 5NWLR (Pt. 293) 317 at 339 and ORHUE V. EDO (1996) 9NWLR (PL473) 475 at 448. Bearing in mind this principle Mr, Rotimi Jacobs, of counsel to 1st respondent, submitted correctly in my view that the order made by Hon. Justice Kalu of Abia state on 31st May, 2007 in suit No. HU/177/2007 was at large ambiguous and non-specific”.
How was the order of Abia State High Court couched. It goes thus:
“It is ORDERED that the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determinations of the motion on Notice
That the respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the appellant until he constitutionality and legality of the said threat is determined”.
The court below describes the above order as “creeping order” likened to a weapon of mass destruction as it restrains everything, everyone under the earth. I agree the order is wide and at large, in view of the facts relied upon in the appellant’s application for leave to enforce his fundamental rights to the dignity of his person guaranteed by Section 34 of the Constitution, his personal liberty guaranteed by section 41 of the said constitution. Paragraphs 15-18 of the appellant’s affidavit in support of the application are as follows:
“15. The applicant has never been confronted with any allegation of criminality. That the applicant has committed no offence.
16. The objective of the respondents particularly the 1st respondent is to publicly humiliated the applicant, subject him to degrading treatment, deny his right to personal liberty and freedom of movement.
17. The consequence of the foregoing is therefore expedient for the honourable court to restrain the respondents from carrying out their treat which is calculated solely to embarrass hereof.
18. That the respondent would not suffer any detriment if they are restrained from arresting, detaining or prosecuting the appellant until the constitutionality and legality of the said threat is determined.
The hard facts relied upon by which the appellant in his application for leave to enforce his fundamental rights, were because of his fear of arrest and prosecution which have the motive of publicly, humiliating, degrading and embarrassing him.
I agree with the court below on this point when it stated on records thus:
“These (allegations) are all speculations interspersed with sentiments founded largely on conspiracy theory, that is completely political. It is trite that sentiments command no place in judicial deliberations. See EZEUGO V. OHANYERE (1979) 6 SC. 17, MOHAMMED IDRISU V. MODUPE OBAFEMI (2004) 11 NWLR (Pt.884) 396 at 409.”
The appellant was in court to enforce his fundamental rights against the 1st respondent, asserting that the alleged violation or threat to violate his rights equally violate the constitutional provisions as they relate to the rights he is seeking to protect, and he is saying that the due process of the law has not been or will not be followed by the said 1st respondent.
It is mere speculation for the appellant to have thought that the courts, particularly the Federal High Court would whimsically undermine the rights of the appellant guaranteed by the constitution. The rights to personality and freedom of movement respectively enshrined in sections 35 and 41 of the said constitution are subject to the procedure permitted by law and for the purpose of bringing the Appellant before a court of law in execution of a court order or upon reasonable suspicion of his having committed a criminal offence.
I cannot fathom the reason why the appellant is so lily-livered in a matter the law fully guarantees his constitutional rights in an event of his prosecution in the court established by the constitution to judiciously and judicially provide adequate facilities for his prosecution including due fair hearing as provided in S.36 of the Constitution, for the alleged offences of money laundering. I agree with the court below that the suit No.HU/177/2007 filed at Abia State High Court by the appellant was nothing but a “gagging suit” with the order made there from on 31/5/2007, designed to frustrate, prevent, and discourage the 1st Respondent from discharging its statutory functions. See the opinion of Lord Denning, on this point in WALLER STEINER V. MOIR (1974) 3 All ER. 217. This important point made in this case is further restated in ATTORNEY-GENERAL V. TIMES NEWSPAPERS LTD (1973) 3 All ER 54 at 60 per Lord Reid.
The suit of the appellant, at Abia State High Court and the general and ambiguous order made therein from were clearly intended to “muzzle” or prevent the 1st respondent from discharging its statutory function.
Sections 6 (m) and 46 of the Economic and Financial Crimes Commission (Establishment) Act vest in EFCC the function and duty of investigating and prosecuting persons reasonably suspected to have committed economic and financial crimes. For a person to rush to court to place a clog or shield against criminal investigation and prosecution is a clear interference with the powers given by law and the constitution to EFCC in the conduct of criminal investigation and prosecution. It is clearly an abuse of due process of the law. See ABACHA V. FRN (2014) 6 NWLR (Pt.1402) 43 at 112, DARIYE V. FRN (2015) 2 SCM P.46 at 68 ATTORNEY-GENERAL OF ANAMBRA V. UBA (2005) 15 NWLR (Pt.947)44 at 67.
ISSUE 2
This issue raises the question whether the proof of evidence filed by the 1st respondent (the prosecutor) has disclosed a prima facie case against the appellant.
Learned counsel for the appellant has submitted that since the arrest of the appellant and materials, placed before the trial Federal High Court were in clear disobedience of the order of Court in a pending suit (lis pendis) therefore a valid charge or information could not have been preferred against him. That till his allegation of infringement of his human rights is determined, that means that every action done after the order was a nullity.
“Prima facie” is the establishment of a legally required reputable presumption. Prima facie is not the same thing as the proof which comes later when the court has to find whether the accused is guilty or not guilty.
The standard of proof as to whether or not the accused is guilty of the criminal allegation is one of proof beyond reasonable doubt – Section 131 of the Evidence Act 2011.
If I may recall the grounds upon which the appellant’s application for the enforcement of his fundamental rights in suit No.HU/177/2007 before the High Court of Abia State, Umuahia, was predicated, were inter alia.
“(i) The charge hereof and the prosecution of the 1st accused/applicant on the said charge breached an order of the Umuahia High Court made on 31st May, 2007 in suit No.HU/177/2007.
(ii) The Umuahia High Count in suit HU/177/2007 in a final ruling to enforce the fundamental rights of the applicant declared that the said charge was brought in clear, brazen and blatant disobedience to the order of the said court made on 31st May, 2007.
(iii) The subject matter of the charge, that is, alleged crime against the revenue of the Abia State Government is not within on the jurisdiction of this honourable court.
(iv)  The said charge did not come within the province and intendment of the Money Laundering (protection) Act, 2004.
(v) The proof of evidence did not disclose a prima facie case against the 1st accused/appellant.”
The fifth ground above on which the appellant’s application was premised is the main contention of the appellant under this issue. It is essentially a challenge to the applicability of Section 14(1) (a) of the Money Laundering (prohibition) Act 2014, to the case at hand, as it concerns the appellant. The section provides as follows;
“14 – (1) Any person who –
(a) converts or transfers resources or properties derived directly from illicit traffic in drugs and psychotropic substances or any other crime or illegal act, with the aim of concealing or disguising the illicit origin of the resources or properties or aiding any person involved in the illicit traffic in narcotic drug or psychotropic substances or any other crime or illegal act to avoid the illegal consequences of his action.
Commits an offence under this section and is liable on conviction to a term of not less than 2 years or more than 3 years.
Section 17 of the said Act creates the offence of conspiracy, aiding and abetting the offence of money laundering. It provides:
“17. Any person who –
(a) conspires with, aids, abets or counsels any other person to commit an offence, or
(b) attempts to commit or is an accessory to an act or offence, or
(c) incites, procures or induces any other person by any means whatsoever to commit any offence, under this Act, commits an offence and is liable on conviction to the same punishment as prescribed for that offence under this Act.”
See the earlier Section 16 which criminalises the retention of the proceeds of a crime or an illegal act on behalf of another. It provides as follows:
“16. Any person who –
(a) whether by concealment, removal from jurisdiction, transfer to nominees or otherwise retains the proceeds of a crime or suspecting that other person to be engaged in a criminal conduct or has benefited from a criminal conduct, or conspiracy aiding etc.
(b) knowing that any property either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct, acquires or uses that property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a term of not less than 5 years or to a fine equivalent to 5 times the value of the proceeds of the criminal conduct or to both such imprisonment and fine.
The Appellant has argued that the particulars given in respect of counts 1-15, apart from being incompetent and confusing are inconsistent with the provisions of section 17 of the Act reproduced above.
The court below painstakingly considered the submissions of respective counsel for the parties on this point and held that there was a prima facie case disclosed against the appellant. The court considered the issue on the application of sections 14 and 17 reproduced above and held as follows;
“l do not see how the allegation is inconsistent with the provision of Section 17 of the Money Laundering (Prohibition) Act, 2004, does, in any way, mislead or confuse the appellant The appellant did not say, and I cannot myself see, what makes the allegation incompetent”
The appellant and the 2nd and 3rd Respondents herein were arraigned before the Federal High Court on a charge containing 107 counts. The appellant is involved on 97 of the counts, namely 1-97. Count 17 gives the straw sample of counts 17-44 and 65 – 97. It states as follows:
“That you ORJI UZOR KALU, UDEH JONES UDEOGU, SLOK NIGERIA LIMITED, EMEKA ABONE (now at large) and EUNICE AGWU (now at large) on or about July 7th 2005 within the jurisdiction of this Honourable Court did transfer through Manny Bank Ltd, (now Fidelity Bank Plc) the sum of N12,500,000:00 (Twelve Million, Five Hundred Thousand Naira) into Slok Nigeria Ltd. ‘s account with First Inland Bank Plc (a company solely owned by Orji Uzor Kalu and members of his family) which formed part of the funds you illegally withdrew from the account of Abia State Government with the aim of concealing the illicit origin of the said funds and you thereby committed an offence punishable under section 14(1 a) of Money Laundering (Prohibition) Act 2004.”
The ingredients of the offence under section 14(i)(a) of the Money Laundering (Prohibition) Act (Supra)  reproduced above, and as submitted by ROTIMI JACOBS SAN, of counsel to 1st respondent (EFCC) are that:
“(i) the accused converted transferred resources or property,
(ii) the resources or property must have been derived directly or indirectly from drugs related offences or any other crimes or illegal acts,
(iii) the conversion or transfer of the resources or property must be with the aim of:
(a) concealing or disguising the illicit origin of the resources or property or
(b) aid any person involved in any of the acts of drug related offences or any other crime or illegal act so as to evade the illegal consequences of his action.”
The appellant’s argument that he neither had shares in nor was he the alter ego of Slok Ltd and the illegality of withdrawal of some huge sums of money from the Account of Abia State Government of which he was the executive governor from 1999 to 2007; all these are matters for his defence at trial. My concern at this stage is to see whether a prima facie case has been disclosed in the information and whether there is any ground for proceeding (See AJIDAGBA v IGP (1958) I NSCC 20 at 21, ABACHA v THE STATE (2000) 11 NWLR (PL 779) 437 at 495. What the information must disclose is not the guilt of the accused person but only a prima facie case for the accused to answer. IKOMI v THE STATE (1986) 3 NWLR (PL 28) 340 at 376.
The trial high court had the proofs of evidence before it. I have taken time to read through the record of appeal containing the proofs of evidence and the briefs of argument exchanged and relied upon by the counsel for the respective parties. I do not agree that there is no scintilla of evidence in the proofs of evidence in support of counts 1-16. They disclose a prima facie case under Section 17 of the Money Laundering (Prohibition) Act (supra) earlier reproduced.
I have observed that the court below, with due respect, went extra miles, in minutest details as if the appeal before it (the subject matter of the trial of the appellant) have been completed. The court was expected to only decide at this stage whether a prima facie case has been established against the appellant to warrant him facing his trial. In any case, the court rightly concluded when affirming the decision of the trial court to the effect that a prima facie case was disclosed against the appellant.
In conclusion, in the light of all I have said, I cannot help but dismiss this appeal for lacking in merit. It is dismissed. I affirm the decision of the court below which rightly affirmed the decision of the trial Federal High Court that it was not bound by the exparte order of Abia State High Court as to vitiate the charges preferred against the Appellant. It is therefore ordered that the Learned Chief Judge of the Federal High Court should assign the case to another judge for expeditious trial.
 
Counsel
AWA U. KALU (SAN) with N.B. Adukwu Esq, A.N. Nwodu (Miss) C.I. Obidike Esq, C.J. Nnaji Esq, for appellant.
 
OLALEKAN OJO Esq. with O.A. Atolagbe Esq, and H.O. P. Ejiga Esq, for 1st respondent
GEORGE E. UKAEGBU Esq, with Emmanuel N. Ukaegbu Esq, Thomas Sekibo Esq, and Deborah M, (Miss) for 2nd and 3rd respondents.

‘Extremism infringes on people’s rights’
By Maureen Onochie

Stakeholders have called on political and religious bodies to avoid acts of extremism as they infringe on the rights of citizens.
Speaking over the weekend in Abuja at a summit on the emerging extremism in a post-Boko Haram Nigeria with the theme “Building a Consensus Against Extremism as a Catalyst for National Integration” organised by the Coalition of Civil Society Organizations on Human Rights and Interfaith Religious Organizations for Peace, the convener of the summit, Bishop Musa Fomson, said extremism has cost loss of lives and properties of numerous people.
Resource persons and participants called for religious tolerance in Nigeria noting that radicalisation by way of people forming their own communities and laws within the Nigerian state should not be allowed.
A resource person, Executive Director, Centre for Peacebuilding and Socio-Economic Resources Development (CePSERD), Mr Ayokunle Fagbemi, said the Boko Haram phenomenon was an example of extremism while the incidents between the Shiite sect and the Army were cases of “security breaches” in the country.
A communiqué issued at the end of the summit called for de-radicalisation of the youths that have been exposed to extreme doctrine by the Shiite sect noting that it was not desirable to have another group replace the Boko Haram when it was completely defeated.
“That government must immediately take concrete steps to stop the Islamic Movement in Nigeria (IMN) from metamorphosing into Nigeria’s next terror group given the recent activities that pose existential threat to Nigeria,” the communiqué said.
 
 
 

 In the light of the above I am satisfied that this statement sought to be tendered was made voluntarily by the 1st accused. The objection made to it being tendered as exhibit is overruled and the statement is admitted and marked Exhibit C.”
In the same vein, at the close of the trial within trial conducted the objection to the admissibility of the appellant’s confessional statement, the trial judge found as follows:
“The 2nd accused in his testimony during the trial within trial had stated he was beaten before he signed the statement in question. He however, in his testimony admitted he did attend Itele High School and that he does not know the 1st accused. Also in his evidence on oath, the 2nd accused did not deny what is in the statement that the handset belonging to the complainant was stolen by him while the robbery was going on as Police Constable Solomon’s fabrication.
 These pieces of information contained in the statement of 2nd accused in my view are not pieces that were within the personal knowledge of the Investigating Police Officer and hence It could not be concocted.
 I have also looked at the signature credited to the 2 accused on the purported statement. The signatures of the 2nd accused is regular and the same throughout. The signature did not strike me as the signature of a man who signed after he had been mercilessly beaten and covered in blood, I expected even to see stains of blood on the statement but it contained none at all.
From the above, I am convinced that the statement of the 2nd accused was made voluntarily and I so hold. The objection to it being tendered is overruled and it is admitted and marked Exhibit G.”
 On record, it is clear that in the statement made to the police upon his arrest, Exhibit C was where the 1st accused mentioned the appellant’s name among those who joined him to carry out the operation. The arrest of the appellant was sequel to the mention of his name by the 1st accused who initiated the operation. Upon his arrest, the appellant also made Exhibit G which, as the trial judge found, contains information which were entirely within the personal knowledge of the appellant and was therefore admitted as a voluntarily made statement in which he made admission to the operation.
There is no doubt that the trial court relied on the appellant’s confessional statement having been satisfied that it was possible and was made by the appellant voluntarily. Notwithstanding the retraction by the appellant, the trial court was satisfied, when other pieces of evidence were considered that the confession was proved.
It is trite law and already settled in several decided cases by the court that, where an extra-judicial confession has been proved to have been made voluntarily and it is found positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt, regardless of the fact that the maker had retracted it at the trial in his evidence on oath in court.
Because the trial court had done all it was required to do to a retracted extra-judicial statement of a suspect before coming to the conclusion that it was proved by the prosecution as having been made voluntarily, I am of the firm view that the court below was right to have endorsed the use of the two exhibits, C & G, by the trial court in convicting the appellant and the court was right to have affirmed the conviction and sentence based on the said exhibits. Accordingly, this issue is resolved against the appellant.
 Now to the issue of whether the court below was right in affirming that the prosecution in the circumstances of this case proved the offences of conspiracy to commit armed robbery and armed robbery, against the appellant beyond reasonable doubt as required by law.
 It is trite law that for the prosecution to establish the offence of armed robbery as required by law, the following must be proved:-
 (i) That there was in fact robbery;
 (ii) That the robbery was an armed robbery; and
 (iii) That accused person was the armed robber or one of the armed robbers.
 See; Bozin Vs State (1985) 2 NWLR
To establish the above requirements, the prosecution relied on the testimony of PW1, PW2 and Exhibits C and G, the confessional statements of the 1st accused and the appellant respectively.
 The trial court had found as follows:-
 “In the present case, the evidence of PW1 as to how he was attacked by three men and robbed is in consonance with all the confessional statements the accused persons have made together with the fact that the material items of the PW1 as contained in his evidence were also mentioned in the statements of the accused persons as having been stolen during the attack on PW1.”
 The trial court went further as follows:
 “The evidence of PW2 also corroborated Exhibit G to the extent that the handset of the PW1 was found in (sic) the 2nd accused when he was arrested. All these pieces of evidence make Exhibits C, E, F, G and H, the confessions true and also most probable. It is for these reasons I do not believe the cock and bull story of the three accused persons that it was the police who asked them to name each other as conspirators of all the people 1st accused knew why was it 2nd and 3rd accused he mentioned. Why was the handset found with 2nd accused and part of the money found with 1st accused. The only inference is that they were all working in concert.”
 When cross examined during the trial by the learned counsel for the 2nd accused, the instant appellant, Mr. Sonuga, the PW2 stated, inter alia, as follows:
“The 1st accused had mentioned the names of 2nd and 3rd accused as committing the offence with him and two others now at large and so we had to release the manager of the petrol station and others we have arrested. The 2nd accused was arrested where he was hiding near his house, the handset of the complainant was found on him as we tried to call the number of the phone, it was ringing where he was and this led us to 2nd accused and one Ajilete also assisted us.
Before the 2nd accused was arrested, we had been looking for the 2nd accused the night before the vigilante were helping us but the morning he was eventually arrested he had gone to hide upon sighting the police but the ringing of the complainant’s mobile handset with him gave him away.”
 From the record of proceedings inclusive of the above there is no doubt that the prosecution adduced ample evidence to show that there was infact a robbery incident on the 7th day of May, 2007 at former Ijebu Ode toll gate in the Ijebu Ode Judicial Division. And that the said robbery was an armed robbery as the men involved were armed with dangerous weapon, such as broken bottle.
 Furthermore, from the statements made to the police by the appellant, coupled with the other material evidence found by the trial court, there is no iota of doubt that the appellant was one of the men that carried out the attack on PW1 whereby he was robbed with a broken bottle and dispossessed of certain amount of money and telephone handsets.
 In its judgment, the court below had alluded to the confessional statement made by the appellant and described it as follows:-
“In this instance, Exhibit G was not only possible but was actually voluntarily made by the appellant. The evidence of PC Solomon at the trial within trial that he never beat the appellant to extract a confession from him was not demolished by cross examination, neither was the evidence of PC Solomon that the appellant voluntarily handed over to him (PC Solomon) a Nokia handset belonging to PW1 which he (the appellant) stole during the armed attack on PW1 demolished during cross examination. Is Exhibit G consistent with the other facts which had been ascertained and which have been proved? The totality of the prosecution’s case put forward so far is eloquent testimony to the fact that the appellant’s confessional statement is consistent with other facts which have been ascertained and proved.”
 At another place in the judgment of the court below, it was found that “all the facts and evidence point to the conclusion that Exhibit G was voluntarily made by the appellant.” I cannot agree less with the trial court and court below on exhibit G being a voluntarily made statement by the appellant. The statement contains so much graphic details of the day to day activities and background of the appellant that only he himself could have voluntarily given but not concocted by anyone to implicate him. I am therefore not in the slightest doubt that the prosecution adduced sufficient evidence to establish the offence of armed robbery against the appellant.
 Accordingly, this issue is resolved against the appellant.
 Now to the charge of conspiracy to commit armed robbery with which the appellant was charged, convicted and sentenced and has appealed to this court against the affirmation of the court below.
On this, the trial court had referred to the confessional statements of the three accused persons that stood trial and were found guilty, convicted and sentenced for the two counts, including conspiracy.
Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of the parties accused which are done in pursuance of an apparent criminal purpose in common between them. See; Folorunsho Alufoha Vs The State (2015) 3 NWLR (Pt. 1445) 172; (2015) All FWLR (Pt.765) 198. In other words, in order to secure conviction on a count of conspiracy, the prosecution must establish the elements of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy. However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offence.
 It is interesting to note, as I had earlier alluded to in this judgment, that learned counsel for the appellant on the issue of conspiracy to commit the offence charged, referred to the statements of the appellant made to the police and that of the co-accused persons in paragraphs 4.80-4.86 and conceded that at best the parties may have conspired to assault PW1 or at worst, cause him grievous bodily harm.
 Having read the portions of the confessional statements of the appellant and the co-accused quoted by the appellant’s counsel, I consider it apposite to state it here that it was quoted out of context to suit counsel’s argument.
 In the record, the 1st accused had stated, inter alia, as follows:-
“I am the person who organised the attacked (sic) because of the way Niyi Oshiyemi, the managing director usually treat me in the place of work that is why I called my brother who lives in Lagos, one Adewole to bring his motorcycle and one Segun who live at Ogbere and plan to attack him but only to beat him up whether he will change but when we cross (sic) him on the road, my people whom we went together says (sic) we should carry the money inside the car, this is how we carry (sic) the money and the total money we carry (sic) was N250,125. And even the label of the total money was on the money, it’s the other two boys that beat him.”
 On page 23 of the record is the confessional statement of the appellant. He stated, inter alia, as follows:
 “I know Kolawole Okunade (1st accused) of Ijebu Ife. We were childhood friend and attend same school. I also know one Segun who live at Itele for about four – five years ago. On the 7/5/2007 around evening time, Segun came to our house at Ogbere.
Segun explain to me that Kolawole Okunade came to him and explain that he was cheated by somebody and he want us to beat that person up.”
It is noteworthy that, it is clearly on the record that the statement made by the 1st accused – Kolawole Okunade led to the arrest of the appellant as one of those with whom he carried out the attack on PW1.
 It is the law, that in a trial for conspiracy, evidence of what one accused person says in the absence of the other conspirators is rendered admissible against such others on the basis that if they were all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. This is said to be an exception to the hearsay rule.”
Upon further reference to the testimony of PW1 and PW2 on the appellant’s role in the attack on PW1, in concert or agreement with others the court below came to the following conclusion.-
 “The evidence was not demolished by cross examination. The confessional statement of the appellant – Exhibit G is also in harmony with the confessional statement of Okunade Kolawole (1st accused) a former employee of PW1 who was in fact the mastermind of the robbery attack. It was through his confessional statement, Exhibit C, that the appellant was arrested.”
It is settled law that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether or not the accused persons had knowledge of its unlawfulness. See; Ikechukwu Okon Vs The State (2014) Clark Vs The State (1986) 4 NWLR (Pt.35) 381.
From the confessional statement of the appellant and that of the co-accused persons, in particular, the 1st accused person who masterminded the operation, which statements were correctly found to be direct, positive and voluntarily made, by the trial court, I am of the firm view without an iota of doubt that the prosecution proved the offence of conspiracy against the appellant in accordance with the law. As a result, the conviction and sentence was correctly affirmed by the court below. Accordingly, the issue is resolved against the appellant.
It is interesting to note that this court already dealt with the appeal of the 1st accused, Okunade Kolawole whose, statement to the police led to the arrest of the appellant as a co-accused in the attack on PW1. In that case reported as Okunade Kolawole Vs The State (2015) 1 SCM 195 at 223, in the short but beautiful contribution in support of the leading judgment My Lord Nweze. JSC clearly states thus:-
“As already indicated in the leading judgment; the complainant’s stolen  items  were  found  in the appellant’s possession soon after the robbery incident complained of.  It was therefore, clear case for the invocation of the presumption in Section 149 (a) of the Evidence act (applicable in 2009 when the appellant took his trial), being the Nigerian Statutory version of the English doctrine of recent possession, Eze Vs The State (1985) LPELR – 1189 (SC) 11-13. In my humble view, the lower court, rightly affirmed the judgment of the trial court even on this score alone.
“It could not have been otherwise for if a person is found in possession of property, which was property reported to have been recently stolen, with or without violence from another person, it is open to a trial court to convict that person of the offence, Isibor Vs The State (2002) LPELR – 1553 SC 22-23, G-C; R Vs Loughlin 35 CR App.69; In Re Karimu attanda Vs The State (1985) 6 SC 1.”
 As I had earlier alluded to in this judgment, it is on record that one of the two mobile phone handsets that were stolen from the car of PW1 during the attack on him was found on the appellant. Indeed, a call to the said phone gave him away from his hiding in a place close to his house when the police were looking for him as the phone was ringing on his body. The trial court found that no explanation was provided by the appellant for its possession of the said stolen telephone handset.
What more can anybody ask for before coming to the conclusion that the appellant was one of the group that attacked PW1 on the day in question.
 In the final analysis, and without any further ado, I hold that this appeal is unmeritorious and deserves to be dismissed. The appeal is hereby dismissed. The judgment of the court below delivered on 6th January, 2012 which affirmed the conviction and sentence of the appellant by the trial court is affirmed.
 Counsel: Uche Obi, SAN with A. M. Sanusi, Esq and S. R. Akinrinlade for the appellant.
 A U Mustapha , Esq with 0. Ehikoya, Esq. for the respondent